Human Rights

Law inMalaysia

 Human Rights: Msian Federal
Constitution
 Malaysia, they have been incorporated in Part II of
our Federal Constitution comprising of Articles 5 to
13 of the Constitution. The Federal Constitution
guarantees certain fundamental liberties namely:
 (i) Personal liberty (Article 5);
 (ii) Prohibition against slavery and forced labour
(Article 6);
 (iii) Protection against retrospective criminal laws
and repeated trials(Article 7);
 (iv) Equality before the law and the rights to equal
protection of the law (Article 8);
 (v) Prohibition of banishment and freedom of
movement (Article 9);
 (vi) Freedom of speech, assembly and
association (Article10);
 (vii) Freedom of religion (Article 11);
 (viii) Rights in respect of education (Article 12);
and
 (ix) Right to property (Article 13).
 Individual rights and freedoms as enshrined in the
Constitution are not without limitations as peace
and security of the country must take centre
stage.
 Therefore, the Federal Constitution provides for
 the limitations to those fundamental rights and
freedoms. These are contained in the relevant
Articles itself and the written law made
thereunder
 In Malaysia, we do not have a constitutional
court. The Federal Court plays a dual role; as the
final court of appeal as well as the interpreter of
the Constitution.
 Constitutional issue may be referred direct to the
Federal Court for its decision, and the ruling of
the
 Federal Court on the issue is final and binding on
the courts below.
 Therefore, the Federal Court can be regarded as
the constitutional court.
 As the protector of the Constitution, the
Malaysian courts have a role to play, to protect
the rights of the individual visa vis the State and
between the States and the Federation. It ensures
that State actions are within their allocated
authority including to ensure the rights and
freedoms provided under the Federal Constitution
are not infringed.
Are we creating a culture of fear?

 “They are creating a culture of fear. If you

engage in any talk of public interest, the police
may come to your house, you may be arrested,
taken to the police station, remanded. Even
members of Parliament are treated that way.”
(Yap Swee Seng, former executive director of Suara
Rakyat Malaysia (Suaram), Kuala Lumpur, April 14,
2015 )
 What are the
restrictions?
 Internal Security Act 1960 (ISA)
 Preventive detention was first implemented in
Malaya by the British in 1948 to combat the
armed insurgency of the Malayan Communist
Party during the Malayan Emergency.
 The ISA was replaced and repealed by theSecurity
Offences (Special Measures) Act 2012 (SOSMA) which
has been passed by Parliament and given the royal
assent on 18 June 2012. The Act came into force on 31
July 2012
 Criticism on SOSMA

 Amensty International:  fails to meet international

human rights standards in several key ways –
including by allowing police to detain suspects
incommunicado for 48 hours, increasing the risk
of torture, and by allowing detention without
charge or access to courts for up to 28 days.
 Sedition Act 1948

 Another powerful and widely employed piece of

legislation, which dates back to 1948, when
Malaysia was still a British colony, is the Sedition
Act, which criminalises speech or writing that is
considered to be seditious. A great many critics
and political opponents of the Malaysian regime
have been arrested and held under the Sedition
Act, the effect of which has been to restrict
freedom of expression in Malaysia.
 Case: Azmi Sharom
 PPPA 1984
 The Printing Presses and Publications Act was first
introduced by the British colonial government as
the Printing Ordinance of 1948 at the beginning
of the state of emergency, in order to counteract
Communist activities seen as a threat to the
establishment. The Act required all newspapers
and printing presses to obtain an annual
publishing licence.
 Lim Guan Eng v Public Prosecutor(1998)
 This is the appeal case of Lim Guan Eng, who had
been convicted for 18 months of imprisonment
and fined under
 1)S 8A (1) Printing Presses and the Public Act
1984 for maliciously publishing false news in the
form of a pamphlet entitled ‘Mangsa
Dipenjarakan’
Arguments by Karpal Singh:
 The first is whether the words’mangsa
dipenjarakan’ is synonymous with the word
‘imprisonment’. The defense counsel Mr Karpal
Singh argued that ‘detention’ was synonymous
with ‘imprisonment’ looking at several
dictionaries and the duration of the detention
 Judge’s view
 The judge disagreed with the above argument
because he felt the other dictionaries which Mr
Karpal Singh referred to gave vague and
definitions. Instead he preferred the meaning of
the Shorter Oxford English Dictionary which says
that prison is “penjara”
 The offense of publishing false news under S
8A(1) is presumed to have malicious intent and
since the judge is satisfied that no reasonable
steps have been taken to rebut the presumption
the accused is to be automatically presumed to
be malicious.
 Minister of Home Affairs v Persatuan
Aliran Kesedaran Negara (1990)

 This is an appeal case by the Ministry of Home

Affairs against a High Court ruling by Harun J.
quashing the Ministry’s rejection of a permit for
publication. 
 In November 1986, the Persatuan Aliran
Kebangsaan (Aliran) applied for a permit to
publish a Bahasa Malaysia version of their
magazine, “Seruan Aliran” in addition to its
English monthly publication Aliran Monthly. But
their application was rejected without any given
reason. 
 Harun J (HC) noted that although the minister’s
discretion is absolute, “it is not unfettered.” The
judge asserted that the minister’s discretion is
limited to protecting the public interest, and he
had no “good reasons” in refusing Aliran’s
application – after all, if the magazine publishes
undesirable material, the publisher and editor are
subject to laws like the OSA 1972, Sedition Act
1972 and the Penal Code.
 Court of Appeal
 a three panel bench overturned the decision
following the Ministry’s  appeal
  the judges, Abdul Hamid LP, Mohamed Yusoff and
Ajaib Singh SCJJ re-iterated that the minister of Home
Affairs has absolute discretion, and cited that there is
no evidence showing he acted with any impropriety
nor his action was prejudiced bias or in bad faith. It
was held that unless it can be clearlyestablished that
the Minister of Home affairs in any way exercised his
discretion wrongfully, unfairly, dishonestly or in bad
faith, the High Could cannot question the minister’s
discretion.
ZUNAR “the cartoonist”
 On June 2010, the Malaysian goverment
announced the ban on five of his political cartoon
publications. The ban was made under the PPPA.
The books are:“1 Funny Malaysia”
 “Perak Darul Kartun”
 “Isu Dalam Kartun vol 1”
 “Isu Dalam Kartun vol 2”
 “Isu Dalam Kartun vol 3”
 Peaceful Assembly Act

 The Peaceful Assembly Act (PAA) replaces Section

27 of the Police Act, which required police permits
for large gatherings. Under the new act, such
permits are not necessary.
 Instead, organizers must give the police 10 days
notice of any planned gathering, after which the
police will reply, outlining any restrictions they
wish to place on the gathering. 
 However, the new act forbids street
protest, prohibits persons under 15 from taking
part in gatherings, prohibits persons under 21
from organising them and etc.
The Human Rights Commission
of Malaysia
 The Human Rights Commission of Malaysia
(SUHAKAM) was established by Parliament under
the Human Rights Commission of Malaysia Act
1999, Act 597. The Act was gazetted on 9
September 1999. The inaugural meeting of
SUHAKAM was held on 24 April 2000.
The impetus for the Malaysian Government to finally consider the
setting up of a national human rights institution came from
several sources. Malaysia’s active involvement in the UNCHR was
one. The international attention on human rights as a result of
the success of the 1993 World Conference on Human Rights in
Vienna where governments, including Malaysia, agreed that
human rights are universal and indivisible, and they recognized
the importance of setting up national human rights institutions,
also influenced the Government.
 As leader of the Malaysian delegation to the United Nations
Commission on Human Rights (UNCHR), Tan Sri Musa, in 1994 first
suggested to the Government that the time was right for Malaysia to
establish its own independent national human rights institution.

 Several factors influenced this proposal:

 the growing international emphasis on human rights and recognition
that it crosses boundaries and sovereignty;
 Malaysia’s active involvement in the United Nations system; the
changing political climate in Malaysia with a more politically
conscious electorate and dynamic civil society.

 By the mid-1990s, seven Asian countries, including two from ASEAN –

Indonesia and the Philippines – had already established national
human rights institutions, while Thailand was in the midst of setting
up its own.
 On 24 April 1999, five years after the idea was
first mooted, the Foreign Minister, Datuk Seri Syed
Hamid Albar, announced that the Government
would table a Bill in the July 1999 sitting of
Parliament to establish the Human Rights
Commission of Malaysia.
 The Bill was guided by the Paris Principles of 1992
which provided the international criteria by which
an independent human rights commission should
be established, and also by the experience of
established human rights institutions, especially
in the Asia-Pacific region.
 On 3 April 2000, the Government announced the
appointment of SUHAKAM’s first Chairman, Tan Sri
Dato’ Musa bin Hitam, and the 12 other members
of the Commission to serve a two-year term,
which is renewable. The appointments were made
by His Majesty the Yang DiPertuan Agong on the
recommendation of the Prime Minister.
 Functions
 SUHAKAM was established under the Human
Rights Commission of Malaysia Act 1999, Act 597.
Section 2 of this Act defines “human rights” as
referring to the “fundamental liberties as
enshrined in Part II of the Federal Constitution”.
 The functions of SUHAKAM as set out in Section 4(1)
are:
 to promote awareness of and provide education
relating to human rights;
 to advise and assist Government in formulating
legislation and procedures and recommend the
necessary measures to be taken;
 to recommend to the Government with regard to
subscription or accession of treaties and other
international instruments in the field of human rights;
 to inquire into complaints regarding infringements of
human rights.
 Section 4(4) of the Act provides that regard shall
be had to the Universal Declaration of Human
Rights 1948 (UDHR) to the extent that is not
inconsistent with the Federal Constitution. This
means that whatever rights and liberties not
mentioned in Part II but referred to in the UDHR
must be considered provided that there is no
conflict with the Constitution.
 The function of inquiring into complaints about
human rights infringements is subject to the
conditions imposed by section 12 of the Act.
Section 12 empowers SUHAKAM to act on its own
motion to inquire into allegations of infringement
of human rights, in addition to acting on
complaints submitted to it.
 Downfall
 SUHAKAM, however, may not investigate
complaints which are the subject matter of
proceedings pending in a court of law or which
have been finally decided by any court. Such
investigations have to cease if the matter being
investigated is brought before the courts.
 CRITIQUES
Suhakam should not passively agree to
these portions of HRCMA because their
enabling provisions severely diminish
Suhakam's actual jurisdiction, reduce its
effective investigative power, and,
ultimately, prevent Suhakam from
offering redress to victims of past,
present and future infringements of
human rights.
 SUGGESTIONS
 Instead, Suhakam should insist that Parliament
immediately amend HRCMA to remove these
enabling provisions that effectively open the way
for a consistent misuse or abuse of law to
circumvent, terminate, or otherwise make a
mockery of any serious inquiry into human rights
infringement and violation that Suhakam might
undertake.
 Power

 The Act provides SUHAKAM with powers to enable

it to discharge its functions effectively. Under
section 4(2), the Commission is empowered to do
the following:
 to undertake research by conducting programs,
seminars and workshops and to
 disseminate and distribute the results of such
research;
 to advise the Government and/or relevant
authorities of complaints against them and to
recommend appropriate measures to be taken;
 to study and verify any infringement of human
rights;
 to visit places of detention in accordance with
procedures as prescribed by laws relating to the
places of detention and to make necessary
recommendations;
 to issue public statements on human rights as
and when necessary
 to undertake appropriate activities as are
necessary.
FIN